In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission's assessment is:

1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.
2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.
3. The amount of the claimant's costs in the matter is $2,579.20 inclusive of GST.

A statement setting out the Commission's reasons for the assessment is included with this certificate.

1. Chung Un Kwon was a passenger on a public bus in the evening of 12 September 2024 when she says she fell and sustained injuries in the course of her leaving the bus.
2. On or about 26 September 2024, Ms Kwon made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz the third-party insurer of the bus Ms Kwon was travelling at the time of her accident.
3. The insurer initially accepted liability for the claim, and paid Ms Kwon her statutory benefits. On 20 December 2024 however, the insurer issued a further liability notice to the claimant denying liability to pay ongoing statutory benefits to the claimant on the basis the accident was caused "wholly or mostly" by her own fault.
4. Ms Kwon sought an internal review of that decision and Allianz affirmed its original decision. As Ms Kwon does not agree with that decision, she has referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
5. The proceedings were allocated to me, and I have held two preliminary conferences in the matter.

1. Ms Kwon's claim for statutory benefits is made under Part 3 of the MAI Act. Statutory benefits payable include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. Ms Kwon was injured and was an "earner" at the time of the accident. She has received both treatment and care benefits and weekly income replacement benefits since the accident.
2. Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person's fault caused the motor accident.
3. While the scheme of statutory benefits is predominantly a no-fault scheme, there are several limits and restrictions. For the purposes of the current proceedings ss 3.11 and 3.28 of the MAI Act are relevant and are in similar terms. Section 3.11 says in respect of weekly statutory benefit as follows"

"(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the motor accident concerned if -

(a) the motor accident was caused wholly or mostly by the fault of the person,[1] or

(b) the person's only injuries resulting from the motor accident were threshold injuries.

(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%."

1. The parties agreed at the first preliminary conference that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Kwon is wholly or mostly at fault in respect of her weekly benefits (Schedule 2, cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).
2. If the motor accident was not caused "wholly or mostly" by the fault of the claimant under s 3.38, weekly benefits are reduced by the degree of the injured person's contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether weekly statutory benefits should be reduced for the claimant's contributory negligence.

1. On 11 October 2024, in the decision of AAI Limited t/as GIO v Evic,[2] Justice Mitchelmore considered ss 3.11 and 3.28 and applied them to a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:

(a) an injured person's entitlement to benefits, including benefits after the first 52 weeks, does not require the claimant to prove fault [55];

(b) the phrase "wholly or mostly" at fault is a composite phrase (not two separate concepts of wholly at fault and mostly and fault) and is directed at the claimant's contributory negligence [56] relevant to the accident (not the injury) [57];

(c) s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002 (CL Act). The test of contributory negligence in that section is "the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person" [60];

(d) where there is more than one motor vehicle involved, or some other road user, the claimant's contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[3] at [61];

(e) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be posed is whether the claimant acted as a reasonable person in their position would have acted citing two blameless accident cases[4] at [68] and [69], and

(f) if contributory negligence is found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is "just and equitable in the circumstances of the case" [73].

1. Allianz wrote to the claimant on 20 December 2024 denying liability to pay Ms Kwon any benefits beyond 10 September 2025 on the basis she had threshold injuries and because fault was denied. Allianz says:

"You were wholly at fault for the accident. This means we deny the person driving the vehicle we insure was at fault."

1. Allianz refers to the bus incident report and a factual report from its investigators and the statement from the insured bus driver who says the claimant did not fall.
2. Allianz also refers to CCTV footage which showed the claimant getting on the bus and sitting toward the middle of the bus and that she was not moving around in her seat as alleged.
3. Allianz says:

"Based on the available evidence, we assert you are wholly at fault. The evidence supports that you have not fallen and by your own admission, you were unable to hold on adequately as you had shopping bags in both hands. Contributory negligence does not apply. If it is later found that you were not wholly at fault, we reserve our rights in respect of contributory negligence."

1. While the insurer's correspondence was written after the Evic decision had been delivered, it makes no reference to the case, and makes statements that appear to be contrary to principles established by the case in particular the statement that "contributory negligence does not apply" and Allianz's reliance on their driver not being at fault.

1. The claimant's solicitors wrote to the insurer on 9 January 2025 saying:

(a) the accident occurred on 12 September 2024 at about 7.13pm;

(b) the CCTV footage does not include any evidence as to how the accident happened;

(c) the claimant boarded the bus at Norwest Station and intended to get off on Merindah Road at Jamberoo Avenue Bus Stop which was opposite her home;

(d) the claimant pressed the stop button "well before" the bus went through the roundabout (40 metres before the bus stop);

(e) the bus driver failed to stop at the bus stop and the claimant stood up to notify him of this;

(f) the claimant moved into the aisle, carrying her backpack on her right shoulder and her handbag on her left shoulder and both her arms and hands were free;

(g) as the bus moved, she held onto the bars and handrails to maintain her balance;

(h) suddenly the driver braked causing the claimant to lose her balance and lose her grip on the bars and handrails;

(i) the claimant was propelled forward, and her body fell had collided with the Opal card reader in the bus, and

(j) after the bus stopped, the claimant got off between the Jamberoo Avenue Bus Stop and the next stop.

1. The claimant's solicitor also addressed the issue of threshold injury in these submissions. The parties confirmed at the first preliminary conference that the insurer has accepted the claimant has a non-threshold injury (the annular tear in her cervical spine).

1. On 30 January 2025 after receiving a request for an internal review, Allianz conducted its internal review affirming the original decision about fault saying:

"I am of the view that a reasonable person in the same situation would have remained seated until the bus came to a complete stop. A reasonable person would not have stood up and walking in a moving bus, especially when holding bags on both sides."

1. Allianz again refers in this decision to CCTV footage showing the claimant boarding the bus with a backpack and two handbags. Allianz refers to the claimant's statement that Ms Kwon had pressed the button, stood up and the driver then made a sudden stop, and the claimant lost balance, while holding her bags and fell near the driver.

1. The submissions lodged with the application form commence with a summary of the claimant's version of events. The claimant then outlines the provisions of the CL Act and cites the case of Podrebersek v Australian Iron and Steel Pty Limited.[5]
2. The claimant says the insured breached his duty of care to the claimant:

(a) by failing to stop the bus or warn the claimant to sit down when the bus was still moving despite noticing the claimant was standing up;

(b) stopping the bus when he was confused as to why the claimant pressed the stop button;

(c) failing to stop the bus safely, and

(d) stopping the bus between designated bus stops.

1. Ms Kwon submits that a reasonable person in the position of the claimant would not expect a bus to stop other than at a designated bus stop [22].
2. She says the statements indicate there was no communication between the claimant and the driver until after the bus stopped [23]. She says a reasonable driver would not have stopped the bus and would have continued driving [24]. The driver should have known that the claimant was at risk having stood up and should not have stopped the bus before determining what she wanted [25]. If the driver was confused, he should have told the claimant to remain seated [26].
3. From the moment she got on the bus the claimant says the bus driver was driving erratically and she notes he had been fined for exceeding the speed limit [28].
4. She denies that the pressed the stop button just before her stop [29] and says she pressed the button well before her stop [30] and she says he did not slow down even after the roundabout. She says he did not slowly pull the bus over but stopped suddenly [31].
5. She submits the driver's evidence lacks credibility and she denies what he says he said to her as she got off the bus (about not standing) [33].
6. The claimant says according to her Opal card she tapped off at 7.13pm at Merindah Road and the driver says she got off at 7.21 at the Glanmire Road stop and he is wrong [35].
7. The claimant had her bags over her shoulders and not in her hands as she was not aware of the correct English term and says both her hands were free [36].
8. She says that the insurer has said there is no evidence that the driver was driving inappropriately [37] but there is evidence, that is her evidence, that he was.
9. The claimant says she was not at fault and the driver was at fault. The claimant did not address the Evic decision and has, like the insurer focused on which of the two parties was at fault.

1. The insurer refers to the following aspects of the claimant's evidence:

(a) the claimant's physiotherapist saw the claimant on 16 September 2024 and reports a left sided impact; on 25 September 2024 Dr Jay reports a right sided impact; on 15 October 2024 Dr Lee records a left sided impact [6]-[12];

(b) there are inconsistencies in the mechanism of accident recorded in Dr Lee's two medical certificates of 15 October 2024 [13] and [14];

(c) the report by the claimant's physiotherapist that Ms Kwon says she was thrown 4 metres [17], and

(d) the claimant's claim form that she had left sided symptoms [19] and that she was holding two bags which made it harder for her to control herself [20].

1. The insurer refers to the insured's accident report form [18] and the driver's statement [23] and his assertion he did not brake harshly [24].
2. The insurer submits:

(a) there are varying reports of how the accident happened [32];

(b) the contemporaneous accounts to health practitioners include varying reports of what happened and what part of the claimant's body was hit [33];

(c) Allianz says the driving of the bus did not cause the claimant's injuries and that the claimant fell when she lost her balance while walking towards the front of the bus [35], and

(d) the claimant was carrying bags in both hands and was unable to safely secure herself and prevent herself from stumbling while the bus was in motion [36].

1. These submissions filed by the insurer's legal representatives do not refer to Evic.

Preliminary conferences and how the matter is to proceed

1. At the first preliminary conference (28 March 2025), directions were issued for the preparation of the matter and additional evidence.
2. At the second preliminary conference (8 May 2025) there was discussion about the approach to be taken to the assessment of the claim in the light of the Evic decision. It was noted that:

(a) there were two persons whose conduct is relevant to the cause of the accident the bus driver and the claimant;

(b) findings of fact would need to be made in relation to what each of them did or did not do;

(c) a breach of duty of care by the driver is necessary in order to assess the relevant culpability of the driver (but not because his fault needs to be established for the entitlement to benefits);

(d) whether there is any contributory negligence on the part of the claimant will depend on whether she has departed from the standard of care that a reasonable person in her position would be expected to exercise, and

(e) as to the degree of her contributory negligence (if contributory negligence was found) there would need to be an apportionment of liability between the bus driver and the claimant.

1. A timetable was set for final documents and submissions. I was advised that no further submissions were made, that the insurer maintained the claimant was wholly at fault and that the claimant maintained the bus driver was wholly at fault.
2. Both the insurer and the claimant requested the assessment be undertaken on the papers. I agreed that a fair assessment could be undertaken on the papers.

1. The claimant says in her claim form[6] (dated 26 September 2024):

"When bus stopped very suddenly, I moved from the middle of bus (A point) to the front side of the bus (B point) very quickly with fast speed and I think I was hit my left side body and elbow to near Opal tapping machine area and twisted my right side as well. I was holding two bags in my both sides, so it was harder to control myself. Especially right-side bag was very heavy."

1. She drew a diagram with an "A" indicating a point in the bus about halfway down the bus and behind five lines (signifying seats) separated by what appears to be the "aisle" between the lines. There is an arrow indicating the claimant's passage towards the front of the bus.
2. Ms Kwon says that when she got off the bus the whole left side of her body was uncomfortable, and both arms hurt. When she went to sleep that night, she said her whole back and shoulders were sore and painful. She also notes "fatigue" on the claim form.
3. The claimant discloses a previous claim in about 2010 but said no injuries or conditions were affecting her at the time of the accident. The claimant said she was a bookkeeper and had 2.5 days off work after the accident
4. The claimant provided her Opal card details[7] showing she got on the bus at Norwest at about 7.13pm and got off at "Merindah at Jamberoo Ave" bus stop. She has also provided a map showing Merindah Road which is straight and which has two bus stops identified - one near Jamberoo Avenue and the other near Glanmire Road.
5. The claimant provided to the insurer photographs from the day of the accident[8] with commentary as follows:

(a) a photograph Ms Kwon took on her phone at 7.27pm shows a small abrasion on her elbow. The claimant says the timetable suggests she got off at 7.18pm and her opal car shows a time which is four minutes different. She says she took this photograph when she got home;

(b) a photograph taken at 8.00pm by Ms Kwon's husband on her phone showing a barely perceptible small abrasion on her elbow. She says he got home at 8.00pm and she asked him to take a photograph, and

(c) a close up of the claimant's elbow taken at 8.00pm which shows a small red mark. She says she was wearing thick clothing which "was a bit protective".

1. Additional commentary provided with those photographs includes that she woke up in the middle of the night with her whole back area sore. That is why she called the bus company the next day. She reports that the driver said, "I didn't hear" and she says, "it's not reasonable to make so sudden stop with heavy breaking like that."
2. The claimant gave a statement to the insurer's investigator on 10 October 2024. It was in the format of a 106 questions and answers. It was conducted over the phone. It was audio recorded [Q2] and the claimant gave her consent to the interview and to it being recorded.
3. The form of the statement appears to be a transcript of the interview as there are frequent appearances of "???" and "[mumbling]" throughout the statement.
4. At question 10 the interpreter asks the claimant to describe her ability to read, write and speak English and she says, "Ah it's ah generally to communicate with you." He then queries whether she would be more comfortable with an interpreter, and she responds at [17] with "thank you, yeah and I understand what you mean and also appreciate the ..."
5. The claimant's words are then transcribed, and the main features of the statement are as follows:

(a) the claimant is a regular commuter on this bus, three days a week [28]-[31];

(b) she got on at Norwest Station [33] and was going to Merindah Road near Jamberoo Avenue [35] "just when I get up it happened" [36];

(c) she pressed the button before the bus stop and one lady get up for the stop ahead of hers and she pressed the button and the bus "was almost passing the stop I want to get off" [39];

(d) she stood up and wanted to say something but before she could finish speaking "he made a big sudden stop and then I couldn't control myself" [41];

(e) she hit her body and that at first "it could have been near the window or something because I don't remember" and she was carrying two bags [43];

(f) it was not easy to control holding something, "I tried to holding the ah, bars or something but just, ah, you know ..."[44];

(g) she twisted her whole body, and she was embarrassed and surprised and went to get off and the driver said "'I didn't hear' or something" and then "'are you OK' or something" and after she got off she felt her left knee was uncomfortable and her body was slightly uncomfortable [45];

(h) she then explains about going home and taking the photograph of her elbow and the decision to call the bus company [47];

(i) she describes the process of making the complaint and the delay in getting a response from the bus company. She says it was difficult getting the registration number of the bus [50]-[53];

(j) she confirms that her body impacted the card reader in the area next to the driver [60];

(k) she says she fell down [62] although qualifies that with, "I think so, yeah" [63];

(l) it was dark [75] and she got off the bus at the front door [77], and

(m) she pressed the button, and he was passing by the stop [84].

1. The claimant provided a statement on 30 April 2025 signed and interpreted which says:

(a) she has lived in her home for seven years. She is a regular commuter on the 660 bus [3] using it four to five times a week;

(b) she got on at Norwest and sat in the middle of the bus near the rear door [5];

(c) she was heading home and her home is located in Merindah Road opposite the Jamberoo bus stop [6], there is a roundabout about 40 metres before the bus stop in the direction she was travelling [8];

(d) she pressed the stop button 100m before the bus stop [9] but the driver did not slow down or stop [10] so she stood up and moved into the aisle carrying her two bags on her shoulders but with her hands and arms free [12] and she held onto the rails on either side [13];

(e) the bus stopped suddenly she lost her balance and grip on the bars and handrails [14]:

"The force of the momentum propelled me forward toward the area near the bus driver's seat. As I continued to lose my balance, I collided with various fixtures around the bus driver's seat, striking multiple parts of my body, including my left shoulder, left hip, left elbow, and left knee. Both sides of my body made contact with the fixtures within the bus, with the left side being more heavily impacted than the right.";

(f) after the bus stopped, she tapped off and got off the bus. The bus was 80m past her stop. As she walked a few steps she experienced left knee pain [16];

(g) when she got home, she discovered scratches and bruises on her left elbow [17] and during the night she woke up with pain in her back [18];

(h) the next day she rang the bus company to report the incident [19], and

(i) when she went to work on 16 September 2024, she opened her bag and noticed the computer mouse was distorted and a plastic container which had been tightly closed was open which she attributes to the accident [20].

1. The claimant provided a photograph of the plastic container which she says was shut when she packed her bag but was open after the incident and her computer mouse which was broken as a result of the impact.
2. The claimant then says she had listened to the audio of the interview with the investigator and she completes what she said where there were question marks or mumbling noted. Many of her responses are not significant but those of relevance to the matters in issue are:

(a) in her answer to question 39 the claimant had mentioned a lady who got off the stop before her. She explains that this lady had been speaking to the bus driver for a minute or two and she wondered whether she had been complaining about the bus driver whose "driving was erratic". She did not mention it to the investigator "out of consideration for the bus driver";

(b) she says in relation to question 40 that she was just standing up and that in her answer to question 41 she had used the words "wake up" which were the wrong words and she had corrected it to standing up. She said she began to speak and before she spoke, he stopped suddenly;

(c) when she responded to question 42, she had said "I expressed like a bullet" and what she meant to convey was that she "rushed forward as if flying";

(d) she says that in answering questions 43 and 44 (and later questions 60, 61 and 64) that she had two bags on each side and hit the card tapping machine. She says that she used the word "hold" when she meant "carry" and she confirms her hands were free she says 'the bus was moving at such a high speed and stopped so suddenly" that she lost her grip and fell;

(e) she says that in her answer to question 45 and later 78 the bus driver asked her if she was okay and that he did not hear something (presumably the stop signal when the button is pressed);

(f) she says she was shy and embarrassed and did not think to identify the bus or its driver [40], and

(g) she clarifies her answer to question 49 and says she meant most drivers are very good and she did not mean that this driver was very good and says:

"Regarding this particular driver, I remember clearly that after departing from Norwest Station, particularly in the section from Barina Downs Road (before Evesham Court bus stop) to MacKillop Drive (after Barina Downs Road), there were about three roundabouts. The driver passed through them without sufficiently slowing down, which made the ride uncomfortable."

1. The claimant now appears to agree that she pressed the stop button at 7.21 and got off the bus at 7.22. This is due to her consideration of her opal car history [77].
2. The claimant says that the driver's evidence indicates that he has viewed the CCTV footage before he gave his statement.

1. She disputes the driver's evidence that he pulled over slowly and that she leaned forward and held on and did not fall [80]. She denies the things he says he said to her about not standing up and getting out of her seat on a moving bus [81].

1. The claimant's husband, Sang Duck Cheon provided a signed (and interpreted) statement dated 17 April 2025.[9] He says:

(a) on 12 September 2024 he got home from work at about 8.00pm;

(b) his wife was complaining of pain in her waist, shoulder, thigh, elbow and knee;

(c) he says the claimant gave her a history of the accident and this is repeated in similar terms to that in the claimant's own statement;

(d) since the accident she has been consistently complaining of shoulder, neck, elbow and waist pain and she has developed anxiety, and

(e) he is a bus driver and says the only video footage provided is of the claimant getting on the bus and she is now fearful of taking busses and she has nightmares and wakes up saying, "I have been scammed."

1. Much of his statement is not firsthand evidence. He was not on the bus with his wife, and he did not witness the accident. Much of his evidence is relaying what his wife said or did and his interpretation of her actions and the actions of others.

1. On 16 September 2024 the claimant attended Ms Jeong, physiotherapist.[10] She refers to an incident while on a bus when the bus came to a sudden stop and there was an impact of the left side of the claimant's body with the "wall" of the bus. The claimant attended her physiotherapist again on 17 September 2024 as she could not get in to see her GP.
2. The claimant saw her GP Dr Jay on 25 September 2024, and he completed the first Certificate of fitness on 25 September 2024[11] and records "Was on public bus on 12/9/24 when it suddenly stopped, and she fell hitting the right side of her body. Also twisted mid back." He diagnosed, "Muscular pain, bilaterally pain of shoulder, upper back." His treatment management plan includes physiotherapy, and he certified the claimant fit for six hours of work a day two days a week.
3. The claimant's solicitors have uploaded a copy of Dr Jay's clinical notes which record on 25 September 2024 that the claimant was injured "on public bus when it suddenly stopped fell to her left and twisted back."
4. The claimant attended Dr Lee on 15 October 2024. He records on a certificate of fitness that the claimant was injured in a rear end collision. Another certificate of fitness of the same date has a history of the bus stopping suddenly and the claimant being thrown to the front of the "car" and the left side of her body hitting "the structures near the driver."[12]
5. The claimant's solicitors wrote to Dr Lee on 27 March 2025 asking him to clarify why there were two different descriptions of the accident in the two different certificates of 15 October 2024 and which one is correct. Dr Lee responded apologising saying the first version (with the rear end collision reported) was a draft or interim certificate and that the correct version was the "final and correct version."[13]
6. The claimant had an MRI of her cervical spine the report of which[14] says there is degenerative disc disease at C5-6, a right sided annular fissure at C6-7 and osteoarthritis at C2-3 and C3-4.
7. The claimant was seen by ReCare services with a Korean interpreter on 13 November 2024.[15] The claimant explained that she gave a statement to the insurer's investigator without an interpreter and after seeing it and identifying errors in it, she has changed general practitioners to someone who speaks Korean and she has requested an interpreter at all further accident-related events.
8. On 25 November 2024 the claimant's physiotherapist submitted an Allied Health Recovery Request (AHRR)[16] which stated the claimant was distressed and, "She recalls the accident as deeply traumatic, describing being thrown over 4 metres into the wall of the bus."
9. The claimant has provided[17] a letter from Dr Kim, psychologist to Dr Lee suggesting the claimant has a Major Depressive Disorder and symptoms of Post-Traumatic Stress Disorder. Dr Kim suggests the claimant is unfit to work and needs to prioritise her recovery.

1. An accident report form was completed by the owner of the bus and is dated 2 October 2024. It is signed by the owner of the bus on behalf of the driver of the bus. It includes the following information:

(a) the driver was 54 years of age at the time of the accident;

(b) he had five plus years of experience;

(c) the incident occurred on 12 September 2024 at 7.18 pm, and

(d) the narrative of the incident was as follows:

"Received a customer complaint that the driver was driving too sharply and too quickly.

That they were moved around in their seats due to the driver's driving.

When they went get off they lost their balance and hit the opal reader."

1. The bus company has provided records but there is no file note or other report of the terms of the complaint made the day after the accident.
2. The statement from the insured driver was taken on 14 October 2024. Again, it is a question and answer format, where the answers have been transcribed from a recording. The driver says his ability to read, write and speak English is 9 out of 10 [9]. He says:

(a) he had been driving buses for five years [14];

(b) he had one speeding fine many years ago when he had started driving [18]-[21];

(c) there are cameras in the buses that record everything [35];

(d) he is familiar with the bus 660 route [33];

(e) at [40] he provides his description as follows:

"A female passenger pressed the stop button shortly after two metres from her bus stop between Benwerrin Avenue and ah, Glanmire Road on Merindah Road at approximately 7:21pm in Baulkham Hills. That action caused some confusion. Either she missed the ah, stop due to the darkness or she intend to get off at the next stop. The bus was only two metres away from the stop. When I looked in the ah, rearview mirror, I saw, I saw her walking toward the driver's cabin. I slowly pulled the bus over to the kerb and as I came to a stop the passenger leaned forward but managed to hold onto the handrail to prevent a fall. I apologised to her and reminded her not to leave her seat until the bus comes to a complete stop. I also asked are you okay madam? She replied that she was fine, thanked me and left the bus. I did not report this incident to the OCC because there was no accident or injury. According to company, company policy, accidents must be reported immediately to the OCC";

(f) he says at [46] she was holding onto the handrail and at [47] he says that the claimant leaned forward but she did not fall;

(g) he says most or all passengers stay seated until the bus stops and maybe the claimant was confused because it was nighttime with where the bus was [54]. He says she walked towards the front door [56];

(h) he confirms there was a slope and denies that he braked harshly [59], and

(i) he says he did not report the incident to the depot because there was no accident to report [64].

1. The CCTV footage from the bus shows several views from inside the bus. The footage is what appears to be from a mobile phone taking a video of the footage being shown on a computer screen. It is therefore not particularly clear however it does show a person getting on the bus with what looks like a backpack slung over one shoulder and another bag or bags held in the crook of the elbow or over the other arm. It appears agreed that this is the claimant. The footage does not show the claimant getting off and it is not clear at what stage of the journey it is when the footage ceases. The film does show her sitting down and sitting still throughout the short passage of film.

1. It was determined at the second preliminary that examination and cross-examination was not necessary for the fair, quick and cost-effective resolution of the proceedings. Both the claimant and the insured driver have given interviews, and those interviews have been transcribed, and the claimant has responded to the driver's interview but no further statement has been provided by the bus driver.
2. The transcription of both interviews (and the answers from the claimant and the bus driver) indicates that English is not their first language. Both have given comprehensive answers to the questions that have been asked but there are clearly word-finding issues for both of them.
3. I have also not been provided with photographs of the scene of the accident, details of the geography of the road, there is no clear photographic evidence of the inside of the bus and no evidence about what notification the bus driver gets of a passenger pressing the button for a stop (for example is there an audio cue only or is there a light that comes up on a panel in the cabin).
4. Despite these limitations I remain of the view that I can fairly determine the issues in dispute between the parties.

1. In making an assessment, findings of fact must be made, and those factual findings must be supported by logical and probative evidence as presented by the parties. Any inferences drawn, must be reasonably open on the facts Australian Broadcasting Tribunal v Bond.[18]

1. I am satisfied that an incident occurred on the 660 bus, on 12 September 2025. While there has been some uncertainty about the precise time of the incident it appears now agreed that it occurred at about 7.20pm.
2. Several of the "inconsistencies" in the evidence which were raised by the insurer as affecting the reliability of the claimant's evidence have fallen away. The Certificate of fitness by Dr Jay referred to a fall to the right when all other health providers (and the claimant) referred to a fall to the left. The clinical note of Dr Jay reports left sided pain (not right sided pain) and I am satisfied that his Certificate of fitness is incorrect. Dr Lee's two certificates of fitness dated 15 October 2025 with two different mechanisms of accident have now been explained by him as an error on his part. I accept this evidence.
3. I am satisfied that the claimant sustained some form of injury in the incident on the bus. I am satisfied that she fell, and that the left side of her body came into contact with a part of the bus likely the Opal card reader. I make this finding about the incident and injury on the basis of Ms Kwon's contemporaneous photograph, her report to her husband, her call the next day to the bus company and her prompt seeking of medical attention. I also make this finding on the basis of the history provided by the claimant in her claim form completed two weeks after the accident.
4. The statements from both Ms Kwon and the bus driver agree that the bus driver asked the claimant if she was okay after the incident. The bus driver would have had no need to ask that question if nothing had happened, and this agreement about what was said further supports my finding that there was an incident, a fall and an injury.
5. I therefore reject the bus driver's evidence that there was no fall, no accident and no injury.
6. I am not satisfied that the claimant fell to the floor of the bus. I make this finding on the basis of the insured driver's evidence and the evidence of the claimant. The bus driver says the claimant "leaned over" but did not fall and this "leaning" is consistent with the claimant's evidence of her falling towards and impacting the Opal car reader. Ms Kwon made no complaint to the bus company of falling to the floor when she reported the incident and did not record a fall to the floor in her claim form or to her treating health care providers. When all of her contemporaneous reports are read together, they indicate she fell forwards in the bus with a part of her body hitting a part of the bus that is the Opal card reader.
7. The absence of the bus driver reporting an incident is consistent with the claimant having a stumble and fall, coming into contact with a part of the bus but remaining on her feet. While the bus driver was aware that something had happened (because he asked how she was) when the claimant said she was okay and got off the bus without complaint it was reasonable for him to assume that nothing much had happened to the claimant. I accept that the incident, the fall and the impact appeared minor to him in particular due to the absence of any complaint made by the claimant at the time. This in my view explains why he did not report an accident or incident to his employer.

1. The claimant complained to the bus company the day after the accident. I make this finding based on the claimant's evidence to the insurer (the commentary with the photographs) and her statements. While the insured completed an accident report on 2 October 2024, the prompt for that appears to have been the claim and the accident report refers to a complaint having been made.
2. There is no dispute that the claimant had got on the bus and sat near the rear door (towards the middle of the bus).
3. I am satisfied that the bus driver did not stop at the claimant's regular stop. I make this finding on the basis that this was the reason for the claimant getting up and out of her seat. She was sitting in the middle of the bus at the rear door and would have had no reason to get up out of her seat if the bus was stopping or was going to stop at a regular stop.
4. If the claimant had pressed the button late, two metres before her stop as the bus driver has said, then it is reasonable to assume it would have taken time for him to pull over and stop the bus. I consider it reasonable to assume that he could not have stopped the bus in the two metres between the button being pressed and the bus stop. This means he would have had to stop after the claimant's regular stop. If the claimant pressed the button on time and he missed the bus stop he would have also had to stop the bus beyond the claimant's stop. Either way, I have found that he did not stop at the claimant's or any regular bus stop but between the two bus stops.
5. Did the claimant press the button too late, or did she press it in time and the bus driver missed the stop? My experience on public busses is that when a passenger presses the "stop" button there is a sound audible to passengers in the bus and a sign lights up at the front of the bus usually behind the bus driver indicating "bus stopping" or similar. Without evidence as to the features of the particular bus the claimant was in and what sort of notification a bus driver gets in the driver's cabin before a bus stops it is difficult to make definitive findings. For example, does the driver get the same audio cue that the passengers get or is there some visual cue that lights up in his cabin that someone has pressed the button?
6. I accept the claimant's evidence as to what the bus driver said "I did not hear ..." There is no evidence from the insurer refuting that. It is plausible there was an audible sound when the button was pressed, and that the driver did not hear it. I therefore accept the claimant's evidence that the driver did not hear the sound and therefore missed the bus stop.
7. I am satisfied the bus stopped suddenly. I make this finding on the basis of the claimant's complaint to the bus company the day after the accident, the report to her physiotherapist (16 September 2024) claim form (26 September 2024), the statement she gave to the investigator (10 October 2024). The claimant's contemporaneous evidence and all of her evidence has been consistent since the day after the accident that the bus stopped suddenly.
8. It therefore follows that I do not accept the bus driver's evidence that he "slowly pulled the bus over to the kerb" or that he did not brake "harshly". I make this finding on the basis that it is highly unlikely any incident or accident would have occurred if he was driving as slowly and carefully as he suggests.
9. I note the claimant's initial complaint, made to the bus company the day after the accident, was that the bus was being driven too sharply and too quickly and that she was moved around in her seat. In her first statement there is no mention of concerns other than the bus stopping suddenly. I note her more recent evidence suggests the bus was being driven erratically. She says there were three roundabouts and that he "passed through them without sufficiently slowing down, which made the ride uncomfortable". The insurer's liability notices and submissions suggest there is video evidence that does not support anything wrong in the manner of the insured's driving. I have previously expressed concern about the video. It is not clear what part of the journey is shown on the video and what proportion of the journey is shown. I therefore accept the claimant's evidence, and I am satisfied that there was cause for the claimant's concern about the manner in which the bus was being driven.

1. The claimant was a regular commuter on this bus. She knew, or ought to have known at the time of the accident where the next stop was, that is (and as agreed) 350 metres away. I make this finding on the basis of her evidence and the length of time she had been living in the area.
2. There has been, in my view, a degree of exaggeration by the claimant as she has told and retold her story, for example, her reporting to her physiotherapist that she was thrown four metres and her statement about being propelled forward like a bullet. I also note that the contemporaneous reports support a single impact to the card reader but that in her most recent statement she complains multiple parts of her body made contact with multiple parts of the bus.
3. I accept that the claimant stood up and moved into the aisle and headed towards the front of the bus while the bus was moving. I make this finding on the basis of the claimant's own evidence and the driver's evidence that he saw her in his mirror. I make this finding because it is the plausible explanation for what happened next, the bus driver stopping the bus suddenly. The claimant says she tried to say something but before she could do so, the bus stopped. It must therefore have been the driver's reaction to her walking down the aisle towards him that resulted in him stopping the bus between stations.
4. Having accepted that the bus stopped suddenly I accept that the momentum of the bus would have led to the claimant moving quickly forward to the front of the bus. I make this finding on the basis of what Ms Kwon has said in her claim form, in her histories to various health practitioners and in her statements.
5. Having viewed the CCTV footage, the claimant had with her at least two bags. She has explained in her most recent statement she was not holding them with her hands but that she had them over her shoulder and had her arms free and was able to hold onto parts of the bus as she made her way down the aisle. I note the footage of her getting on the bus with one bag slung over her right shoulder and others on the other arm and she was able to manage swiping her opal card and she walked down the aisle before taking her seat.
6. I note that according to the bus driver the claimant was holding on to the handrail at the time she "leaned" forward. She says she had been holding on and then lost her grip when the bus stopped suddenly. In her claim form Ms Kwon acknowledged it was harder to control herself because she had bags on both sides and the right-hand side bag was particularly heavy. Having considered all of this evidence I am satisfied that the claimant was carrying two bags in a manner which enabled her to hold onto parts of the bus and that she did hold onto parts of the bus as she moved down the aisle. I accept the claimant's evidence that this affected the way she moved and her ability to maintain a grip on the handrails.

1. The decision in Insurance Australia Limited t/as NRMA v Richards[19] establishes that the onus of proof in satisfying the Commission that the claimant is "wholly or mostly at fault" lies with the insurer.
2. In summary I have found the circumstances of the accident were as follows:

(a) the claimant had cause for concern over the way the bus was being driven after it left Norwest;

(b) the bus driver missed the claimant's bus stop;

(c) the claimant got up and started to walk down the aisle in order to get him to stop;

(d) as a result of her movements the driver took action and the bus stopped suddenly;

(e) the claimant was carrying bags which made it hard for her to maintain control and she moved quickly towards the front of the bus and lost her balance, and

(f) the claimant fell hitting the opal card reader, but she did not fall to the floor of the bus.

1. As stated in Evic, there can be single vehicle accidents with no other protagonist involved or there can be accidents involving more than one actor such as two drivers, a driver and a pedestrian and in this case a bus driver and a passenger. It was the actions of both, that has, in my view contributed to the above sequence of events which led to the accident.

Did the claimant depart from her standard of care

1. I accept that the claimant's actions contributed to the accident for the following reasons:

(a) I have accepted that the claimant was concerned about the way the bus had been driven since it left Norwest. She has given particular evidence about the woman who got off at the stop before hers and thought she might have been remonstrating with the driver. In my view, a reasonable person who was already concerned about the driving of the bus would not have got up out of her seat and undertaken the dangerous manoeuvre of walking down the aisle of a moving bus, being driven in what she perceived to be an unsafe manner;

(b) I have found the claimant had her hands free but was carrying at least two bags, one of which was particularly heavy. A reasonable person carrying two heavy bags, would not in my view have got out of her seat and walked down the aisle;

(c) a reasonable person in the position of the claimant knowing it was 350m between bus stops, with concerns about the way the bus was being driven would have remained seated and got off at the next stop, and

(d) a reasonable person in the position of the claimant, with concerns about the driving of the vehicle and with two bags would possibly have stood up in her seat, holding onto the back of the seat in front of her but would not move into the aisle, and would have called out to the driver "stop" or similar.

1. As I have found the claimant has departed from the standard of care of a reasonable person, and that this departure contributed to the cause of the accident it follows that there must be a finding of contributory negligence made against her.

1. I need to make a finding of the bus driver's breach of duty in accordance with Shuk, not in order to establish fault on his part, but so that I can make a finding of his culpability and then compare it to the claimant's culpability.
2. There is no expert or any evidence from either the claimant or the driver about the precise or estimated speed of the bus. I cannot make any finding about speed. The bus driver was keeping a proper lookout in that the was aware the claimant had got up and was out of her seat and was also driving a public bus down a residential street without any other incident.
3. I am of the view he did breach his duty of care in that having missed the claimant's regular stop, he stopped suddenly between the claimant's regular stop and the next stop when he was aware that the claimant was out of her seat and moving towards the front of the bus. A reasonable person in the position of the bus driver (having seen the claimant out of her seat) would not have stopped suddenly but taken extra care to stop slowly and carefully. Alternatively, a reasonable person in the position of the bus driver would have kept driving steadily toward the next regular stop before stopping.
4. I do not accept the claimant's submissions that the bus driver should have told the claimant to sit down when he saw her standing. The claimant's accepted evidence is that she did not speak with or call out to the driver before the bus stopped and that before she had time to say anything the bus stopped. If she did not have time to say anything to him, then it is unlikely he would have had time to say anything to her.

What is the degree of the claimant's contributory negligence?

1. The Podrebersek decision along with Shuk and Evic makes it clear that I have to assess the degree of the claimant's contributory negligence by considering the relative culpability of each party.
2. The bus driver was driving a public bus, had missed a stop, was aware the claimant was out of her seat and stopped suddenly. The claimant was out of her seat walking down the aisle in a moving bus. She had concerns about his driving and was carrying at least one heavy bag which affected her balance.
3. I am of the view that both the bus driver and the claimant should share responsibility for the cause of this accident. In my view the just and equitable degree of the claimant's contributory negligence as required by s 3.38(3)(c) is 50%.

1. As I have found the claimant's contributory negligence to be 50%, it follows that she is not wholly or mostly at fault within the meaning of ss 3.11(1)(a) or 3.28(1)(a).

1. On 26 February 2025, the claimant submitted that she is entitled to costs on the regulated basis in the amount of $1,992 plus goods and services tax (GST).
2. On 22 May 2025 the claimant provided a list of three disbursements incurred in connection with the dispute: Dr Jay's records (which were essential to resolving one issue in this dispute) and two interpreter invoices in respect of the preparation of the claimant's statement and the statement of her husband.
3. On 29 May 2025 the insurer advised the Commission it agreed that the claimant's costs should be awarded on the basis of the claim for costs and disbursements that had been made.
4. I therefore assess the claimant's costs at:

(a) professional costs $1,992 plus $199.20 in GST

(b) Dr Jay's records $65 no GST charged

(c) interpreter $123.64 plus $12.36 in GST

(d) interpreter $170 plus $17.00 in GST.

1. The total costs assessed is $2,350.64 plus $228.56 in GST.

[1] Section 3.28(1)(a) adds the words "and the person is over 16 years of age at the time of the motor accident" to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.

[2] [2024] NSWSC 1272.

[3] [2023] NSWSC 788.

[4] Axiak v Ingram [2012] NSWCA 311 where contributory negligence for a reckless pedestrian was assessed at 50%. Davis v Swift [2014] NSWCA 458 where contributory negligence for a pedestrian who stepped backwards off a median strip was assessed at 80%.

[5] [1985] HCA 34.

[6] Page 7 of the claimant's initial bundle.

[7] Page 70 of the claimant's initial bundle.

[9] Page 31 of the claimant's additional bundle.

[10] Her records are at page 18 of the insurer's initial bundle.

[11] Page 77 of the claimant's initial bundle. Multiple other certificates have been provided but it is not necessary in these reasons to detail them all.

[13] Pages 4-7 of the claimant's additional bundle.

[14] Page 74 of the claimant's initial bundle.

[15] The report of Ms Lin is found at page 21 of the insurer's bundle and is dated 14 November 2024.

[17] Page 72 of the claimant's initial bundle.

[18] (1990) HCA 33 at [367].

[19] [2023] NSWSC 909 at [45].